[co-author: Anushka Sarkar]*

The Equal Employment Opportunity Commission (EEOC) issued new guidance (Guidance) on April 29, 2024 regarding workplace harassment and its violation of federal law, including Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, Americans with Disabilities Act, Sections 1981 through 1988 of Title 42 of the United States Code and other federal law prohibiting harassment over which the EEOC has jurisdiction (EEO laws). The Guidance does not create new law, regulations or rules, but instead identifies existing principles and examples articulated by caselaw organized by topic.

The Guidance is divided into three components:

• Covered bases and causation
• Discrimination with respect to a term, condition, or privilege of employment
• Employer liability for harassing conduct

Unlawful harassment must be based on a legally protected characteristic and must either involve a change to the victim’s employment or create a hostile work environment. Protected characteristics covered by the Guidance (and applicable law) include: race; color; religion; sex (including sexual orientation, gender identity, pregnancy, childbirth, or related medical conditions); national origin; disability; age (40 or older); and genetic information (including family medical history).

The new Guidance includes in the definition of unlawful harassment:

• Mistaken perception harassment based on the incorrect perception that an individual has a protected characteristic (e.g., harassing a Sikh individual because the perpetrator believes them to be Muslim)
• Associational harassment based on the victim’s association with another individual bearing a protected characteristic (e.g., harassing a white colleague because they are married to a Black person)
• Intraclass harassment based on a protected characteristic common between the complainant and the harasser (e.g., a woman harassing another woman on the basis of sex or gender)
• Intersectional harassment based on two or more protected characteristics (e.g., harassing a Latina woman on the basis of both her race and gender)
• Systemic harassment, in which multiple parties who share a protected characteristic are harassed on that basis (e.g., non-U.S. citizens in a workplace are repeatedly referred to by colleagues as “the foreigners”)

The Guidance reinforces that conduct both (1) in a work-related context occurring outside of a regular place of work and (2) in a non-work context may foster a hostile work environment. Among other things, the Guidance also explains longstanding workplace harassment law in a modern context, such as instances of remote workplace conduct that may violate EEO laws. The Guidance also cites to Bostock v. Clayton Cnty., 590 U.S. 644 (2020), to include gender identity and expression within the definition of “sex,” and further notes that misgendering (repeatedly and intentionally referring to someone by an incorrect name or pronoun) may be considered harassment.

Finally, the Guidance outlines various forms of employer liability for workplace harassment. For example, an employer is automatically liable for unlawful harassment if the harasser is a supervisor or an alter ego or proxy of the employer.

While the Guidance became effective immediately in April, it is likely to face legal challenges. In November 2023, more than 20 state attorneys general filed a letter to the EEOC disclosing their intent to challenge the guidance on religious freedom and other First Amendment grounds. For now, the Guidance remains in full effect.

*Summer Associate